9 feb 2012
ISSUES: Torture; custodial rape; violence against women; impunity; rule of lawThe Asian Human Rights Commission (AHRC) has received information from MASUM concerning yet another case of brutal custodial rape at the Hariharpara police station at Murshidabad District in West Bengal, India on 29 and 30 November 2011. In this case, too, it is alleged that the police officers have tortured a poor village woman. The officers threatened the victim who suffered serious injuries, to keep silent. The identity of the victim is not being disclosed by the AHRC in consideration of her right to social dignity and to prevent any potential social stigmatization. We urge your prompt intervention in this case so that the Indian authorities can identify the individual police officers, who allegedly raped the woman, and prosecute them immediately without any impunity.
The incident happened between 29 and 30 November, 2011. At about 12 midnight a group of police officers from the Hariharapara Police Station entered the victim’s house illegally. The victim says that they were verbally abusive, physically assaulted her and destroyed many household articles. They then dragged her to a police vehicle in which they continued to beat her. She was then taken to the police station where they raped her.
On 30 November 2011 at about 10.30pm the victim was taken into the Hariharapara Block Primary health centre but the Officer-in-Charge of the police station threatened the victim to keep silent. She was told to make a false statement in order to save the policemen from any trouble. Then later, at around 11.30pm she was taken back to her house.
As her condition worsened as a result of the brutal torture and rape she was admitted to the Baharampur New General hospital on 2 December 2011. On 5 December 2011, she made a complaint to the Superindent of Police and the District Magistrate, Murshidabad about the torture and rape by the policemen. Even though the complaint was duly accepted she was not sent to the government hospitals for a medical examination in time and from the given information provided, MASUM and the AHRC is of the opinion that the governmental bodies in the above mentioned district are trying to protect their fellow policemen. It is also reported that the victim was tortured because the police officers were not able to catch her husband who is implicated as an accused in a bailable offence.
The police officers have violated the basic rights of a poor village woman, whom the police are legally obliged to protect. Torture of women in custody including rape is reported regularly in India.
Rape is the fastest growing crime in the country and India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to the cases of rape, according to the latest data of the Union Home Ministry suggest. Ahead of India is only the United States and South Africa where custodial rape remains one of the worst forms of torture perpetrated on women by the law enforcement personal. The National Human Rights Commission India has reported 39 cases between the years 2005-2010. In fact, the actual number of cases is much higher than the reported statistics.
Section 46(4) of the code of criminal procedure mandates: save in exceptional circumstances no women shall be arrested after sunset and before sunrise and where such exceptional circumstances exist the women police officer shall by making a written report , obtain the prior permission of the judicial magistrate of the first class the offence is committed or the arrest is to be made.
Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.
The mandatory requirements prescribed in the code of criminal procedure for arrest and also guidelines made by the supreme court of India reported in D.K.Basu vs State of west Bengal 1997 All India Reporter Supreme Court 610 has not been complied with by the aforesaid police officers.
Section 450 of the Indian penal code 1860 mandates punishment for house trespass in order to commit offence punishable with imprisonment for life. Section 450 of the code prescribes by way of imprisonment for a term of not exceeding ten years and shall be liable to fine.
Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.
Section 366 of the code mandates punishment for kidnapping, or abducting or inducing women to compel her marriage etc. The Section mandates: whoever kidnaps a woman knowing that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either a description of a term, which may extend to ten years.
Section 376(2) (a) of the code mandates: Whoever being a police officer commits rape Section 376(2) (a) (i) of the code mandates: within the limit of the police station to which he is appointed or Section376 (2) (a) (ii) of the code mandates: in the premises of any station house whether or not situated in the police station to which he is appointed: or Section376 (2) (a) (iii) of the code mandates: on a woman in his custody or in the custody of a police officer subordinate to him: or Section376(2)(b) of the code mandates: being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him Section 376(2) (g) of the code dealt with commits gang rape.
Anyone who commits any of the afore said offences shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
Section 195A of the code mandates Threatening or inducing any person to give false evidence and it prescribes punishment for a term, which may extend to seven years.
ISSUES: Torture; custodial rape; violence against women; impunity; rule of law
Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.
The supreme court of India in Visveswaran vs State Represented by S.D.M. reported in 2003 All India Reporter 2471 confirmed the conviction of a police officer involved in a rape case.
The Committee on the Elimination of all forms of Discrimination against women stated in its general recommendation No.19 that gender based violence is a form of discrimination of all forms of discrimination against woman (CEDAW) requires its member parties to eliminate in all its forms. The declaration on the elimination of violence against woman (DEVAW) Article 2(c) makes clear that ‘physical, sexual and psychological acts of violence perpetrated or condoned by the state wherever it occurs’ also fall within the definition of the violence against woman .In order to take all measures to eliminate violence against woman states must ‘refrain from engaging in violence against woman’. (Article 4(b)) and exercise due diligence to prevent, investigate and in accordance with the national legislation, punish acts of violence against woman, whether those acts are perpetrated by the state or by private person (Article4(c)).While India is a member nation of the Convention the state is having an obligation to make it sure that the recommendations are enforced, as not withered away by any governmental mechanism.
Had the police force in Bengal been operating in compliance with the Bengal police Act 2007 and its rules, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in t
he force. Violence by the police against the poor village woman and other forms of corruption and crimes committed by the police force with impunity is a threat to the justice-oriented law enforcing system. Such a force is a threat to the entire country.
Please write to the authorities listed below asking for their urgent intervention in this case. Please urge the authorities to conduct a credible investigation followed by prosecution of the alleged perpetrators. The victim must be protected from further harassment by the state-agents and be afforded adequate medical treatment and financial compensation for her sufferings.
The AHRC is also writing a separate letter to the UN Special Rapporteurs on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Violence Against Women calling for their interventions in this case.
Urgent Appeal Case: AHRC-UAC-020-2012
9 February 2012